Com. v. Tedesco, T.

J-S01045-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TINA TEDESCO, :
:
Appellant : No. 2458 EDA 2019
Appeal from the PCRA Order Entered July 22, 2019
in the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002229-2013
BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 28, 2020
Tina Tedesco (Appellant) appeals from the July 22, 2019 order
dismissing her petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
In 2013, Appellant and her husband, John Tedesco (John or her
husband) (collectively, the Tedescos), were charged with various crimes for
their role in the death of a dependent person in their care, Barbara Rabins.
This Court summarized the basic facts of this case in Appellant’s direct
appeal as follows.
[] Appellant and her husband had a relationship with
[Rabins] for approximately twelve years preceding Rabins[’s]
August 18, 2011 death at the age of 70. Rabins was a mentally
and physically disabled individual who was estranged from her
out-of-state family and whose father established a trust fund for
her before his death. Appellant and her husband received $2,000
per month from the trust for rent and incidental expenses as well
as money from the trust to pay for their utility bills. In addition,
* Retired Senior Judge appointed to the Superior Court.
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Appellant, as payee, received Rabins’ $1,300 monthly social
security checks. Also, Appellant and her husband were
designated beneficiaries of [a] $100,000 life insurance policy
insuring Rabins and identifying her as their aunt.
In 2010, Rabins suffered a stroke and was admitted to a
rehabilitation facility. The Tedescos insisted that she be released
to their care shortly thereafter and Rabins was discharged
against medical advice. At the time of her discharge on July 14,
2010, Rabins weighed 219 pounds. At the time of her August
2011 death, which was caused by “hypernatremic dehydration
with aspiration of food bolus,” i.e., dehydration with high sodium
levels and choking (on a piece of cheese), Rabins weighed 116
pounds. An autopsy revealed that, at the time of her death,
Rabins was wearing an adult disposable diaper that was wet with
urine, feces and blood. She suffered from pressure ulcers on her
chest, thighs, legs, feet, right elbow and forearm, back, lower
back, buttocks and hand. Photographs taken at the autopsy
showed that her arms and hands were dirty and covered in
feces, with feces under her overgrown fingernails that were an
inch to an inch and a half long on one hand. Ultimately, the
doctor who conducted the autopsy announced that the manner
of death was neglect of a care[-]dependent person, fitting the
medical definition of homicide. As a result, the Pennsylvania
State Police initiated an investigation into her death, including a
search of the Tedescos’ home. Appellant and her husband both
voluntarily gave statements to the police.
The Tedescos contended that they cared for Rabins in their
home[, where she was found dead by emergency personnel
following a 911 call by the Tedescos], but evidence suggested
that she was actually living in an apartment [on Route 115 in
Saylorsburg] with a roommate, Tom Miller, who was hospitalized
in a V.A. hospital beginning in March of 2011 and beyond Rabins’
death. A search of the apartment revealed an apartment in a
filthy condition that contained wheelchairs, walkers, and a
blanket and couch that were soiled.
Commonwealth v. Tedesco, 168 A.3d 326 (Pa. Super. 2017) (unpublished
memorandum at 1-2) (titles removed).
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Approximately two years after the death of Rabins, Appellant was
charged with “third[-]degree murder, neglect of care-dependent person,
theft by unlawful taking, theft by failing to make required disposition of
funds received, and tampering with/fabricating physical evidence. With the
exception of tampering with physical evidence, Appellant also was convicted
of conspiracy to commit each of the enumerated crimes.” Id. At the
conclusion of a joint jury trial with her husband that began on August 5,
2015, and concluded on August 14, 2015, the jury found Appellant and her
husband guilty of the charged crimes. On October 26, 2015, Appellant was
sentenced to “an aggregate term of incarceration of not less than 183
months (15.25 years) and not more than 366 months (30.5 years).” Id.This Court affirmed Appellant’s judgment of sentence on March 20, 2017.
See generally id. Our Supreme Court denied Appellant’s petition for
allowance of appeal on September 19, 2017. Id., appeal denied, 170 A.3d
1060 (Pa. 2017). Appellant did not seek further appellate review.
On May 14, 2018, Appellant timely filed pro se a PCRA petition.
Following the appointment of counsel, Appellant filed an amended PCRA
petition. Two hearings were held on March 4, 2019, and April 18, 2019. On
July 22, 2019, the PCRA court denied Appellant’s petition.
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This timely-filed appeal followed.1 On appeal, Appellant raises 11
issues, each contending that Appellant’s trial and/or direct appeal counsel
rendered ineffective assistance of counsel in various ways. Appellant’s Brief
at 4-6.
We are guided by the following standard of review in assessing
Appellant’s issues, some of which we address together for ease of
disposition. On review of orders denying PCRA relief, our standard is to
determine whether the PCRA court’s ruling is free of legal error and
supported by the record. Commonwealth v. Orlando, 156 A.3d 1274,
1280 (Pa. Super. 2017) (citation omitted). To prevail on a petition for PCRA
relief, a petitioner must plead and prove, by a preponderance of the
evidence, that his conviction or sentence resulted from one or more of the
circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances
include ineffectiveness of counsel, which “so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
“[C]ounsel is presumed to be effective, and the petitioner bears the
burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d
130, 150 (Pa. 2018).
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
1 Both Appellant and the PCRA court complied with the mandates of
Pa.R.A.P. 1925.
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petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted).
Issue One: Withdrawal of Guilty Plea
Appellant’s first issue concerns counsel’s alleged ineffectiveness in
relation to the withdrawal of her guilty plea. By way of background, in
February 2015, Appellant initially agreed to plead guilty to third-degree
murder in exchange for the Commonwealth’s agreement to recommend
capping her sentence to 6 to 12 years instead of 6 to 20 years. The
sentencing court ordered the probation office to prepare a pre-sentence
investigation (PSI) report, and the probation office complied by interviewing
Appellant and preparing a report. At the March 16, 2015 sentencing
hearing, the trial court announced it refused to accept the sentencing cap
agreed upon by the Commonwealth and Appellant because, contrary to her
guilty plea, Appellant made statements suggesting she was not accepting
responsibility for her role in Rabins’ death. Specifically, the PSI report
stated that Appellant had said
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I have a heart. I cared for [Rabins]. Of course I didn’t kill her.
It’s not my fault she choked on a piece of cheese. That’s crazy.
Being charged for 3rd degree is outrageous. That’s how I
thought how can I take this plea deal? There are people taking
plea deals and actually killed somebody.
PSI, February/March 2015, at 2b.
The sentencing hearing was continued so that Appellant could consider
her options. On April 1, 2015, the trial court granted Appellant’s motion to
withdraw her guilty plea and the case was scheduled for trial.
Appellant now contends that her counsel rendered ineffective
assistance to her by failing to advise her of the ramifications of going to trial
with so many charges and the possibility of consecutive sentences if found
guilty. Appellant’s Brief at 25. Appellant claims she did not know she could
maintain her plea, and says she would not have withdrawn her plea had she
been so advised. Id. She also contends counsel should have objected to
the court’s refusal to abide by the plea agreement by filing a petition to
enforce the guilty plea. Id.Regarding the refusal to accept the plea agreement, the trial court
has broad discretion to accept or reject a plea agreement, and there is “no
absolute right to have a guilty plea accepted.” Commonwealth v.
Hudson, 820 A.2d 720, 727-28 (Pa. Super. 2003). “While the
Commonwealth and a criminal defendant are free to enter into an
arrangement that the parties deem fitting, the terms of a plea agreement
are not binding upon the court. Rather the court may reject those terms if
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the court believes the terms do not serve justice.” Commonwealth v.
White, 787 A.2d 1088, 1091 (Pa. Super. 2001). Therefore, to the extent
that Appellant claims her counsel was ineffective for failing to seek to
enforce the sentence negotiated in the plea agreement, the court was within
its discretion in rejecting the proposed sentence as not serving justice due to
Appellant’s failure to accept responsibility and expressed lack of remorse.
Accordingly, such claim fails for lack of merit.
Appellant testified at the PCRA hearing that her counsel told her she
had to go to trial, did not explain the possibility of consecutive sentences for
multiple charges if the jury found her guilty, and did not tell her she could
keep her guilty plea. N.T., 4/18/2019, at 57.
On the other hand, Appellant’s counsel testified at the PCRA hearing
that she and her co-counsel advised Appellant that withdrawing her plea and
proceeding to trial was the best option because they believed Appellant had
a chance to convince the jury that she acted in negligence, not malice.
However, counsel also testified that they explained to Appellant the potential
sentences she could receive and that they had “long discussions” about
proceeding to sentencing or withdrawing the plea and proceeding to trial,
and specifically whether Appellant “wanted to continue with the plea and the
sentencing or whether she wanted to proceed to trial.” Id. at 16-17.
Based on the PCRA court’s holding that Appellant failed to prove that
this claim had merit, it is clear that the PCRA court credited counsel’s
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testimony over Appellant’s. PCRA Court Opinion, 7/22/2019, at 13. We are
bound by the PCRA court’s credibility determinations that are supported by
the record. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
Furthermore, the PCRA court noted that Appellant’s initial guilty plea
colloquy contained an acknowledgement of her awareness that she was
facing 40 years of incarceration in the aggregate and she had the
opportunity to discuss the agreement with counsel. PCRA Court Opinion,
7/22/2019, at 13. Therefore, the PCRA court found that Appellant had
elected to enter into a plea arrangement, knew the potential risks and
benefits, and only changed her mind once the trial court removed the
sentencing cap due to Appellant’s refusal to accept responsibility for Rabins’
death. Id. She elected to take her chances at trial, a decision she was
given ample time to make due to the court’s continuance of the hearing. Id.The PCRA court’s analysis is free from legal error and supported by the
record. Accordingly, because the underlying claim lacks merit, no relief is
due on her first issue.2
2 Nor is relief due on her second issue, which she combines with the first in
her brief. Appellant frames the second issue as “whether the [PCRA] court
erred as a matter of law and abused its discretion in failing to find counsel
was ineffective in failing to [advise Appellant adequately] of potential
ramifications of going to trial vs. plea arrangement[.]” Id. at 4
(unnecessary capitalization omitted). Her entire argument as to the second
claim is simply a conclusory repeat of the issue without any analysis. Id. at
26 (“The trial court also erred as a matter of law and abused its discretion in
failing to find counsel was ineffective in failing to [to advise Appellant
adequately] of potential ramifications of going to trial versus plea
(Footnote Continued Next Page)
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Issue Five: Preparation of Client for Trial
In her fifth issue, Appellant insists trial counsel was ineffective because
counsel did not prepare Appellant adequately for trial. Appellant’s Brief at 4.
Her presentation of the argument is rather unfocused; she argues that
counsel did not discuss her option to testify on her own behalf at trial, then
morphs the issue into an argument that counsel did not advise her of the
pros and cons of testifying, and then finally claims she would have testified if
counsel had provided her with the necessary information and prepared her
for trial. Appellant’s Brief at 29-30.
Trial counsel testified at the PCRA hearing that the defense team met
with Appellant for hours to discuss whether she should testify, and
conducted mock trial questioning to prepare her for testifying. This is in
(Footnote Continued) _______________________
arrangement.”). This conclusory statement offers nothing to distinguish the
issue from her first. To the extent Appellant is attempting to pose a
separate issue, such issue is waived for failure to develop it.
Commonwealth v. Sipps, 225 A.3d 1110, 1116 (Pa. Super. 2019) (holding
that a failure to cite to pertinent authority and develop a meaningful analysis
renders an issue waived); see also Pa.R.A.P. 2119(a) (requiring an
appellant to provide in argument section of brief “such discussion and
citation of authorities as are deemed pertinent”).
Similarly, Appellant’s third and fourth issues are waived for failure to develop
them. Appellant’s third issue questions whether the PCRA court erred or
abused its discretion in failing to conclude that counsel prepared
inadequately for trial. Appellant’s Brief at 4. Appellant does not develop any
analysis of this issue beyond what she already presents in other issues.
Appellant’s fourth issue focuses on the ineffectiveness of counsel in failing to
cross-examine witnesses adequately. Appellant’s Brief at 4. However,
Appellant does not specify the witnesses whom counsel cross-examined
inadequately, let alone the ways in which the cross-examination was lacking.
Accordingly, both her third and fourth issues are waived.
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contrast to Appellant, who testified her counsel did not prepare her to testify
at all or discuss the option to testify. The PCRA court deemed trial counsel’s
testimony to be credible. PCRA Court Opinion, 7/22/2019, at 19-20. “A
PCRA court’s credibility findings are to be accorded great deference,” and, if
the findings are supported by the record, they are binding upon a reviewing
court. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.
2017) (citation omitted).
Based upon the testimony at the PCRA hearing and the PCRA court’s
credibility determinations, no relief is due on Appellant’s fifth issue.
Issue Six: Recusal
In her sixth issue, Appellant argues counsel was ineffective for failing
to request the recusal of the trial judge. According to Appellant, counsel
should have made this request because the trial judge refused to abide by
the sentencing cap in the plea agreement between Appellant and the
Commonwealth and made a statement during sentencing that Rabins
“basically went through torture.” Appellant’s Brief at 34. Appellant argues
the trial court was prejudiced against her, as demonstrated by her extensive
sentence and the trial court’s “rulings during trial, [which] have been set
forth herein and issues addressed in her original appeal.”3 Id.3 To the extent Appellant is attempting to incorporate argument by
reference, this is not permitted by our appellate rules. Commonwealth v.
Briggs, 12 A.3d 291, 342-43 (Pa. 2011); Pa.R.A.P. 2119(a), (b).
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When assessing a PCRA claim that counsel was ineffective for failing to
seek recusal of a trial judge, this Court has noted the following.
The party who asserts a trial judge must be disqualified bears
the burden of producing evidence establishing bias, prejudice, or
unfairness necessitating recusal, and the decision by a judge
against whom a plea of prejudice is made will not be disturbed
except for an abuse of discretion. … A jurist, when a motion for
recusal is filed, must consider whether his or her involvement in
the case creates an appearance of impropriety and/or would
tend to undermine public confidence in the judiciary.
Commonwealth v. Sarvey, 199 A.3d 436, 454 (Pa. Super. 2018) (citations
and quotation marks omitted).
As discussed supra in Appellant’s first issue, the trial court stated it
refused to accept the sentencing cap agreed upon by the Commonwealth
and Appellant because, contrary to her guilty plea, Appellant made
statements suggesting she was not accepting responsibility for her role in
Rabins’ death. The record supports the trial court’s observation, and a
motion to recuse based upon the trial court’s rejection of the negotiated
sentence cap would have had no merit. See Commonwealth v. Blount,
207 A.3d 925, 933-34 (Pa. Super. 2019) (holding that rejection of a
negotiated sentence “does not require the conclusion that [a trial judge] was
biased, prejudiced, or unfair such that [the judge] should have recused
herself from th[e] matter”). Consequently, counsel was not ineffective for
failing to seek recusal on this basis.
Appellant’s second basis for recusal would not have fared better. The
trial court made the comment about torture during the joint sentencing
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hearing for the Tedescos while explaining why it had arrived at their
sentences. Specifically, the trial court stated,
on the surface, you have [Rabins] who has the mental capacity
of a child; basically, someone who couldn’t really take care of
herself. … Someone who didn’t have any adult functional
capabilities but had trust moneys available every month to pay
for her upkeep strikes me as someone who was wide open to be
taken advantage of in various ways.
***
[In 2010, Rabins] had [a] stroke. The Tedescos were used
to [Rabins’ money] coming in every month to maintain the
[Tedescos’] new vehicles, the new house, the furniture, the
clothing and the vacations, and now Rabins suddenly … has
gotten into a situation where she needs 24-hour care. … She
was signed out against [medical] advice [from the nursing home
following her hospital stay]. My recollection from the trial is that
[Rabins] didn’t last very long outside of that nursing home
situation. I think the same day she arrived at the home, that
first nursing home contacted the Office of the Aging and had
Office of the Aging personnel over there that very day who
immediately -- and this isn’t at the Tedesco house. This was
down [at the apartment] in Saylorsburg with Tom Miller. [The
Office of Aging] immediately recognized that this is way beyond
the capability of the Tedescos to care for Rabins. They pulled
her out of that apartment right away. She was there alone with
Miller, as I recall. How she lasted as long as she did, I’ll never
know without … nursing care and supervision. She gets back in
the hospital; she then went to the other nursing home. They
eventually released her again, telling the Tedescos that she’s got
to … have full-time care. Again she winds up in the apartment in
Saylorsburg. [I]t sounds to me that somehow Miller was keeping
things going there plus the visits from John. I’m not sure when
Miller moved out of that apartment. ... And from that point on,
Rabins’ existence had to be pure hell. She had nobody watching
her while John was working. I didn’t get the sense that at any
time Appellant was there for her. Appellant was taking care of
her home and her children, and nobody was thinking about
Rabins except every month when the checks came in. And her
condition was horrible. It was something that would cause
anybody who encountered it to react with just basic - just like
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when Office of the Aging walked into the house way back when
they immediately took her out of there. Anybody who walked in
there had to know this was bad. Your senses would tell you that;
what you saw, what you smelled. Rabins went through - she
basically went through torture. Anybody who saw her
condition would know that she needed to be in a hospital
immediately. I believe that John was aware of that. I don’t know
what Appellant was aware of other than she knew that Rabins
wasn’t being properly taken care of. The family was down in
Wildwood on a vacation being paid for by Rabins’ trust fund
while Rabins was suffering alone in an apartment up in
Pennsylvania.
N.T., 2/1/2016, at 23-27 (names altered; emphasis added).
In context, the trial court was simply summarizing the evidence and
explaining why it was imposing the sentences. Given the evidence at trial
about Rabins’ condition, the trial court’s description of Rabins’ experience as
torture was not unwarranted. We do not agree that the trial court’s
statement was a ground for recusal. See Commonwealth v. Flor, 998
A.2d 606, 642 (Pa. 2010) (“[I]t is not improper for a judge to address a
defendant after sentencing for the purpose of reiterating to the defendant
that the punishment just imposed was well-deserved.”). Because the
underlying claim lacks merit, Appellant cannot succeed on her claim of
ineffective assistance of trial counsel for failure to seek recusal of the trial
court judge. Accordingly, the PCRA court did not err in dismissing this claim.
Issue Seven: Investigate Commonwealth Evidence
In her seventh issue, Appellant argues that her trial counsel failed to
investigate Commonwealth evidence that was available for inspection. At
trial, defense counsel objected to documents introduced by the
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Commonwealth, claiming that they were not provided during discovery. On
appeal, this Court noted that the trial court determined that defense counsel
was aware of the documents and had an opportunity to inspect them. The
documents were listed on property records as “miscellaneous documents,”
but defense counsel failed to examine them. Defense counsel also failed to
examine the contents of Rabins’ purse, which contained an address book.
Appellant’s Brief at 35-37.
What is lacking from Appellant’s argument is a demonstration of how
these items prejudiced her such that there would have been a reasonable
probability of a different outcome if counsel had inspected the records in
advance of trial. The trial court provided defense counsel with an
opportunity to examine the records at trial, and counsel did not object to
them on an evidentiary basis. N.T., 8/7/2015, at 237-38. Appellant does
not specify the contents or substance of the miscellaneous documents4 or
how the failure to inspect the documents in advance harmed her case.
Therefore, the PCRA court did not err in dismissing this claim.
Issue Eight: Commonwealth Closing
In her eighth issue, Appellant argues trial counsel was ineffective
because she did not object to the Commonwealth’s closing argument, in
4 Based upon the pages of the transcript to which she refers us, in general
Appellant appears to be referring to the admission of 16 pages of
handwritten notes found in Rabins’ apartment, miscellaneous documents
found in the Tedescos’ master bedroom, and miscellaneous documents found
in Rabins’ bedroom at the Tedescos’ home. Id. at 132-59.
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which the district attorney referred to entries in Rabins’ address book that
supported the Commonwealth’s theory that Rabins did not live with the
Tedescos. Appellant’s Brief at 37-39. She contends this information likely
led to her conviction. Id.
By way of background, the Commonwealth entered into evidence a
purse and its contents that belonged to Rabins and was seized from the
Tedescos’ residence. N.T., 8/7/2015, at 160; Commonwealth Exhibit 41. A
day planner was found inside the purse. The district attorney referred to the
day planner during the Commonwealth’s closing argument, emphasizing
various entries in the calendar:
June 23, 2008 – “John comes to visit.” June 10, 2008 –
“John comes to visit.” June 23, 2008 – “John comes to visit, call
Sharon [Leinwand, the trust administrator]. Tom comes home.”
July 27, 2009 - That was a Monday “[Appellant] and John are
going on vacation.” August 2, 2009 - “John and [Appellant]
come home.”
You can take a look at all the months in the early part of
2008 and you will see John comes to visit. You will see an entry
for when she moves to Pennsylvania in 2008. The entry of
moving into Pennsylvania corresponds to the date on the lease
at the [Route] 115 apartment. So what does all this mean? All
of that stuff is that [] Leinwand who’s played like a fiddle by the
Tedescos is not true. [Rabins] stayed down there in Jersey [at
the Route 115 apartment] with Tom Miller up until 2008. Her
own entries verify that.
N.T., 8/14/2015, at 88-89.
The PCRA court offered the following analysis of Appellant’s claim.
[T]his evidence was offered to show that the Tedescos moved
Rabins to Pennsylvania at a later time than they had told
Leinwand, the trust officer who administered Rabins’ trust funds.
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Leinwand had testified that Appellant notified her by letter on
May 3, 2006, that Rabins would be living with her ‘in a mother-
in-law suite’ at the Tedesco home…. It was also used to show
that Rabins lived at the Route 115 address [with Miller], not the
Tedescos’ address. Appellant argues that defense counsel
should have objected to this evidence as evidence ‘admitted
during a closing argument.’ However, the purse and its contents
had been discussed during the trial, offered as evidence[,] and
received by the court. See Commonwealth’s Exhibit 41, N.T.,
8/7/[20]15, at 160. Appellant further argues that this evidence
should have been addressed by defense counsel during the trial.
She is not specific as to the nature of the objection that should
have been raised, or how the evidence should have been
addressed by defense counsel.
The question of where the Tedescos kept Rabins - at their
home … or in a first floor apartment on Route 115 in Saylorsburg
[with Miller] - was the focus of the Commonwealth’s case
throughout the trial.
Trial Court Opinion, 7/22/2019 at 14-15 (names altered; some citations
omitted).
The trial court then summarized all of the evidence introduced by the
Commonwealth at trial to prove that the Tedescos kept Rabins at the
apartment outside of their direct daily care instead of at their home,
concluding that the planner entries highlighted by the Commonwealth in its
closing were cumulative of other evidence. See id. at 14-19. In fact, the
trial court described the “evidence … that Rabins was being kept by the
Tedescos in the Route 115 apartment from 2008 forward, at first with Miller
as a roommate, and finally, alone” as “overwhelming.” Id. at 18 (names
altered). Since the evidence referred to in the closing was merely
cumulative to other overwhelming evidence admitted during the
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Commonwealth’s case-in-chief and showing the same thing, the trial court
determined that Appellant failed to prove the last prong of the ineffective
assistance of counsel analysis, prejudice. We agree. No relief is due.
Issues Nine and Ten: Expert Witness
In her ninth issue, Appellant argues that trial counsel rendered
ineffective assistance of counsel by not having her defense expert in
attendance at trial to aid in the cross-examination of the Commonwealth’s
expert witness, Sherri Blanchard-Doran. Appellant’s Brief at 39-44. In her
tenth issue, Appellant argues that trial counsel was ineffective because
counsel did not investigate the Commonwealth’s expert and appellate
counsel did not include the issue of the expert in Appellant’s brief on direct
appeal. Id.
By way of background, Appellant presented an expert witness, William
Manion, M.D., to rebut the Commonwealth’s theory of homicide by neglect.
During its case-in-chief, the Commonwealth presented the testimony of
Sherri Blanchard-Doran, who was the director of nursing at Forest Manor, a
long-term care nursing home where Rabins resided from June 30, 2010 to
July 14, 2010, when the Tedescos signed her out against medical advice. As
the trial court explains,
Blanchard-Doran testified as a fact witness because she
supervised Rabins’ care in Forest Manor, and had discussions
with the Tedescos about Rabins’ care and about the Tedescos’[]
demand to move her from the facility against medical advice.
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Blanchard-Doran was then asked to comment on autopsy
photographs to identify necrotic tissue, which drew a defense
objection. The defense objected because Blanchard-Doran had
not been named as an expert and had not been qualified to
testify as one. [The trial court] permitted the Commonwealth to
ask questions of voir dire to qualify her and [the trial court]
permitted defense cross-examination of qualifications. [The trial
court] allowed her to give expert testimony over defense
objections.
Trial Court Opinion, 7/22/2019, at 22-23.
There is no merit to Appellant’s claim that defense counsel should
have had their defense expert present during the testimony of Blanchard-
Doran for the simple reason that Blanchard-Doran was not identified as an
expert in advance. Defense counsel cannot be expected to anticipate every
trial strategy by the Commonwealth. Counsel objected to the testimony, but
the objection was overruled.
Regarding Appellant’s claim that defense counsel failed to investigate
Blanchard-Doran, again, defense counsel had no reason to believe that this
fact witness was going to testify as an expert. Furthermore, as the trial
court points out, trial testimony indicates that a defense investigator did
speak to Blanchard-Doran in advance of trial. Trial Court Opinion,
7/22/2019, at 25 (citing N.T., 8/7/2015, at 92).
Moreover, while Appellant argues that appellate counsel did not raise
the issue of Blanchard-Doran’s testifying as an expert on direct appeal,
counsel did in fact raise this very issue. See Tedesco, supra (unreported
memorandum at 5-6) (“Appellant asserts trial court error for allowing
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Blanchard–Doran to testify as an expert witness because the Commonwealth
failed to identify her as an expert witness, because no report was prepared,
and because Appellant’s expert was unable to view her testimony.”). This
Court has determined already that there was no merit to a challenge to
Blanchard-Doran’s testimony. See id. (holding that the trial court did not
err by permitting Blanchard-Doran to testify as an expert because
Blanchard-Doran had the requisite knowledge and skills “in geriatric nursing
to discuss pressure ulcers and wounds … as they related to geriatric
patients,” “the Commonwealth did not violate any disclosure rules because
the witness did not generate or introduce an expert report,” and Appellant
did not suffer prejudice because “the defense was on notice of the
prosecution’s intention to offer an expert in pressure ulcers, even if the
expectation was that a different witness would offer that testimony”).
Accordingly, since there is no merit to Appellant’s claims, the trial
court did not err in declining to find counsel to be ineffective.
Issue Eleven: Renewal of Venue Objection
In her eleventh and final issue, Appellant argues that trial counsel was
ineffective in not renewing her petition for change of venue. Appellant’s
Brief at 44-50.
We use the following standard to evaluate requests for a change of
venue.
A change in venue is compelled whenever a trial court concludes
a fair and impartial jury cannot be selected from the residents of
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the county where the crime occurred. As a general rule, for a
defendant to be entitled to a change of venue because of pretrial
publicity, he or she must show that the publicity caused actual
prejudice by preventing the empanelling of an impartial jury. The
mere existence of pretrial publicity alone, however, does not
constitute actual prejudice. Simply because prospective jurors
may have heard about a case through media reports does not
render them incapable of jury service.
***
[T]he pivotal question in determining whether an impartial jury
may be selected is not whether prospective jurors have
knowledge of the crime being tried, or have even formed an
initial opinion based on the news coverage they had been
exposed to, but, rather, whether it is possible for those jurors to
set aside their impressions or preliminary opinions and render a
verdict solely based on the evidence presented to them at trial.
Nevertheless, our Court has recognized that there are some
instances in which pretrial publicity can be so pervasive and
inflammatory a defendant does not have to prove actual
prejudice. Prejudice will be presumed whenever a defendant
demonstrates that the pretrial publicity: (1) was sensational,
inflammatory, and slanted toward conviction, rather than factual
and objective; (2) revealed the defendant’s prior criminal record,
if any, or referred to confessions, admissions or reenactments of
the crime by the defendant; or (3) derived from official police or
prosecutorial reports. However, if the defendant proves the
existence of one or more of these circumstances, a change of
venue will still not be compelled unless the defendant also
demonstrates that the presumptively prejudicial pretrial publicity
was so extensive, and pervasive that the community must be
deemed to have been saturated with it, and that there was
insufficient time between the publicity and the trial for any
prejudice to have dissipated. With respect to the determination
of whether there has been an adequate cooling off period to
dissipate the effect of presumptively prejudicial media coverage
... [a] court must investigate what a panel of prospective jurors
has said about its exposure to the publicity in question. This is
one indication of whether the cooling period has been sufficient.
Thus, in determining the efficacy of the cooling period, a court
will consider the direct effects of publicity, something a
defendant need not allege or prove.... Normally, what
prospective jurors tell us about their ability to be impartial will
be a reliable guide to whether the publicity is still so fresh in
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their minds that it has removed their ability to be objective. The
discretion of the trial judge is given wide latitude in this area.
Commonwealth v. Bardo, 105 A.3d 678, 712-14 (Pa. 2014) (citing
Commonwealth v. Briggs, 12 A.3d 291, 313-14 (Pa. 2011)).
In her brief, Appellant cites general law about requesting a change of
venue before providing a one-paragraph analysis of the law as it applies to
her case. Her analysis, in its entirety, is the following.
In this matter, there was tremendous pre-trial publicity. While
there was a cooling-off period, the pre-trial publicity went
rampant again, publicizing Appellant’s guilty plea and
subsequent withdrawal of the plea. This publicizing of
[Appellant’s] guilty plea is extremely prejudicial. Counsel for
Appellant should have renewed the change of venue motion and
same should have been granted.
Appellant’s Brief at 49-50.
Appellant’s analysis is woefully vague. It is her burden to prove her
claim, see 42 Pa.C.S. § 9543(a)(2)(ii), but she fails to direct our attention to
where in PCRA proceedings she set forth evidence proving that “pre-trial
publicity went rampant again.” See Pa.R.A.P. 2119(c) (requiring argument
to set forth a reference to the place in the record where the matter referred
to appears). Her analysis is conclusory without any meaningful discussion.
Given Appellant’s utter failure to attempt to develop her analysis, we find
this issue to be waived.
Even if we were not inclined to find waiver, we would affirm the PCRA
court’s denial of this claim for the reasons stated by the PCRA court. The
PCRA court points out that defense counsel’s motion for a change in venue
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was included in the omnibus pretrial motion argued in February 2014. The
trial court denied the motion in June 2014, concluding that the publicity
around the case had subsided and Appellant was free to conduct individual
voir dire at the time of jury selection to renew her motion. Defense counsel
did not renew the motion. However, during the PCRA process, Appellant
does not point to any issues with a specific juror, and according to the PCRA
court, the only news articles successfully introduced into evidence by
Appellant were news reports that were from 2013, more than two years
before jury selection. PCRA Court Opinion, 7/22/2019, at 29. Thus,
Appellant has failed to plead and prove prejudice to her case.
Furthermore, trial counsel testified that she recalled only one article
noting that Appellant had withdrawn her plea, and she did not renew the
motion for change of venue because no juror stated they had formed an
opinion about the case. N.T., 3/4/2019, at 32-37, 52. Because Appellant
has failed to prove there was a reasonable probability of a different outcome
if not for counsel’s failure to re-file the motion for change in venue, see
Franklin, 990 A.2d at 797, the trial court properly denied her claim that
counsel was ineffective.
Conclusion
Based on the foregoing, we affirm the PCRA court’s order dismissing
Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/20
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